India, with its vast population has emerged as one of the most attractive country for the multi nationals as they scourge around the world to woo the customer. Offering every lucrative kitty from their basket these organizations in their attempt to attract the customer have engaged in number of malpractices damaging the geo, socio, and political climate of the destination (new) country. The governments' worldwide are building norms and regulations to curb their malpractices. India, too in order to protect its stakeholders from falling into the trap of these companies is gearing up its norms keeping in mind the international benchmarks. Though, having a long history but a short past these regulations have been a part of Indian policies ever since the trading began in an organized form. Right from the time of arrival of East India Company to the Coca Cola, there have been partnerships, mergers, acquisitions and they call for strict and stringent norms to bring ethical behavior of these companies. The present paper talks about the regulatory frameworks since its inception from 1650 onwards.

The purpose of this essay is to review the history of legal developments in the twentieth century that affected America's poor. The twentieth century was a period of both positive developments and unfulfilled promise in the legal rights of the poor. Although progress had been made, at the end of the century there remained obstacles to fulfilling America's commitment to equal justice under law. Section I details the important social programs enacted by Congress in the last century, and comments on their varying degrees of success. Section II delineates some of the important jurisprudential developments affecting the poor in the same period. Section III notes the increasing disparity between the rich and the poor in this country, highlighting the need for increased scrutiny on the programs and law detailed in the first two sections.

The Guardian(U.K.) looks forward to these books in history and politics forthcoming in 2008, including a new work by Philip Bobbit of the University of Texas and Columbia law schools:

In history, 2008 begins with two big names tackling terrorism: the Samuel Johnson prize-winner Michael Burleigh'sBlood and Rage: A Cultural History of Terrorism (Harper Press) in February, and in MarchTerror and Consent: The Wars for the 21st Century(Allen Lane) by Philip Bobbitt, acclaimed author of The Shield of Achilles. In April Whitbread-winner John Guy's A Daughter's Love (Fourth Estate) promises to "break open a secret" about Sir Thomas More by focusing on his daughter Margaret, his sole intermediary when he was imprisoned in the Tower for treason.

Also in April, Chris Harman's A People's History of the World (Verso) will eschew kings and queens to show how ordinary people have changed history from the bottom up; while Jack the Ripper and the East End (Chatto & Windus), introduced by Peter Ackroyd, will coincide with a major exhibition of Ripper-related nastiness at the Museum in Docklands. In May the bestselling author of Tommy and Redcoat, Richard Holmes (The military one), will examine the colourful personality of John Churchill in Marlborough: England's Fragile Genius (Harper Press), and in The Invention of Scotland: Myth and History (Yale) the late Hugh Trevor-Roper will mischievously observe that tartan and the kilt were invented by Englishmen. In June the brilliant historian of the Nazi era Ian Kershaw will examine the Holocaust in Hitler, the Germans, and the Final Solution (Yale), showing just how Germany's persecution of the Jews evolved into genocide. Also in June the Washington Post reporter Michael Dobbs will draw on new archival material in One Minute to Midnight: The Untold Story of 'Black Saturday', the Most Dangerous Day of the Cuban Missile Crisis (Hutchinson) to recreate that nail-biting moment of imminent nuclear Armageddon.

In July the author of The Italian Boy, Sarah Wise, tells the story of the Old Nichol, a notorious Victorian slum, in The Blackest Streets (from the newly revived Bodley Head). As might be expected, she has more sympathy for the slum's inhabitants (it was a breeding ground for communists and anarchists) than for the clergymen and do-gooders who wanted to put them all in internment camps or make them emigrate.

While the battle of the EU treaty (or is it a constitution?) is set to dominate British politics in the new year and well into the spring, the big political story in 2008 will be the US election in November and the tantalising prospect of regime change at the White House. In February Bloomsbury [will] publish The Bush Tragedyby Jacob Weisberg, which will sift through the wreckage of George W Bush's "plane-crash presidency" and in May the BBC's Washington correspondent Matt Frei's Only in America (HarperCollins) will argue that Washington DC has become the new Rome. [Weisberg's metaphor apparently is not tied to the idea that the Bush presidency was, in large part, made by the plane crashes on 9/11. The book descriptionsays: "In this revealing and defining portrait, Weisberg uncovers the “black box” from the crash of the Bush presidency. Using in-depth research, revealing analysis, and keen psychological acuity, Weisberg explores the whole Bush story. Distilling all that has been previously written about Bush into a defining portrait, he illuminates the fateful choices and key decisions that led George W., and thereby the country, into its current predicament."]

Looking even further ahead, Simon Schama's thematic history The American Future (Bodley Head) is out in October, while in November the prize-winning journalist Patrick Tyler's A World of Trouble: America in the Middle East (Portobello) promises us the definitive portrait of how the United States has conducted itself over the past 40 years in a region that we can be pretty certain will continue to make the news throughout 2008.

In May 2007, a conservative Christian group called Answers in Genesis opened the gleaming Creation Museum in northern Kentucky. The $27 million facility covers sixty thousand square feet, all of it dedicated to promoting an understanding of the world's origins based on a literal reading of the book of Genesis....

Michael Lienesch's fine new book, In the Beginning, helps us understand the milieu from which the Creation Museum emerged. Lienesch contends that in the years between World War I and the Great Depression, an identifiable antievolution movement took shape. He draws extensively on social movement theory to make sense of the movement's early years. The book demonstrates how opposition to evolution became a cause celebre among conservative Christians, and it illustrates how antievolutionists transformed their ideology into a political movement.

Lienesch begins his narrative by tracing the emergence and early development of fundamentalism, a religious movement that coalesced in the 1910s. Like previous scholars of fundamentalism, Lienesch rejects stereotypes of the movement as a rural, southern phenomenon. He locates fundamentalist origins in major northern cities, such as Boston, New York City, Chicago, and Minneapolis. Lienesch differs from previous scholars who have defined fundamentalism according to its doctrinal characteristics. Fundamentalists, he argues, "were less concerned with creating creeds than with constructing community" (p. 10). He demonstrates how fundamentalists used prophecy conferences, bible camps, denominational structures, and published materials to create a movement with a collective identity. Furthermore, Lienesch details how fundamentalists leveraged a sense of shared identity by mobilizing millions of conservative Americans against "modernism."

By creating institutional and rhetorical structures in which conservative Christians could unite around a shared perception of rising secularity, fundamentalists had laid the groundwork for a mass political movement. But in the early 1920s, they lacked an issue around which they could rally their followers. Evolution became that issue. Though complex and poorly understood by most Americans, evolution "seemed somehow less philosophical and more specific than naturalism, materialism, or skepticism" (p. 70). William Jennings Bryan, who was not a fundamentalist himself, nonetheless became the foremost antievolution activist, and he connected the teaching of evolution to all manner of ills. The "Boy Orator of the Platte" contended that evolution "denied the existence of a personal and revealed God, destroyed human morality, and created a war of all against all" (p. 71). In short, evolution became the "symbol for everything that was wrong with the nation" (p. 85).

Fundamentalists' ability to employ evolution as a diagnosis for all that ailed the United States helped them to build alliances with non-fundamentalists, and this coalition building facilitated the transformation of fundamentalism from a religious identity to a mass political movement....

Lienesch's use of social movement theory is both a strength and a weakness. By filtering historical research through the lens of social movement theory, he is able to show not only what fundamentalists thought about evolution but also how they mobilized a diverse constituency against it. But on a few occasions, Lienesch's reliance on theory threatens to overwhelm the historical narrative. The book's final chapter, which tracks the various manifestations of antievolutionism from 1930 to the present, attempts to subsume a host of developments under a handful of theoretical concepts. The theoretical concepts Lienesch introduces here are plausible, but without the patient historical work he provides in the preceding seven chapters, this jaunt through eight decades of history risks oversimplification.

But that is a minor quibble. Lienesch's book succeeds admirably on a number of levels. Lienesch provides a detailed chronological account of early fundamentalism rooted in careful archival work. He offers a model of interdisciplinary scholarship by showing how social movement theory can inform historical research. And most important, Lienesch details how antievolution represents so much more than an "assault on science." Scientists may scoff at the Creation Museum--and at those who buy into its presentation of natural history--but antievolutionism is not going away anytime soon. It behooves all of us to understand how this movement emerged and why it persisted. In the Beginning is a perfect place to start.

At a time of increasing globalisation and the benchmarking of legal competitiveness, TRANSPLANTING COMMERCIAL LAW REFORM is a timely book. It adds to our understanding of how law and legal change influences the way we understand and conceptualise legal transplantation. In particular, John Stanley Gillespie develops a methodological framework guiding scholarship into legal transplantation, with particular reference to Vietnam. A useful section describes the legal transplantation debate. This literature focuses upon law’s relative autonomy from society and in this sense fails to deal with many questions revolving around the interaction between legal transplants and domestic laws and institutions within recipient countries.

Gillespie shows that conventional transplantation theories are too crude, not least because in the case of Vietnam for example, they failed to take into account Vietnam’s uneven history of legal borrowing. To understand legal transplantation in the Vietnamese context, Gillespie shows that it is necessary to develop new analytical tools dealing with the interaction between western-rights based laws and institutions with Marxist-Leninist ideological frameworks, taking into account state and non-state regulation.

The history of legal transplantation with Vietnam is discussed in the book, starting with neo-Confucian notions and Chinese-inspired imperial statecraft, through to the imposition of the French colonial legal system. Gillespie then explains why French colonial legal legacy was so easily swept aside by Soviet-inspired revolutionary reforms. In particular, pre-modern moral values were conflated with Marxist-Leninism to produce what he describes as a revolutionary morality that guided state rule until more emphasis was placed on law-based governance during the 1980s. A significant finding of the book is that conflicting ideologies do not necessarily constrain legal borrowing and, in fact, may actually create space for imported ideas. Indeed, in the context of transplanting commercial law in Vietnam, neo-liberal ideals supporting property and contractual rights were not blocked by Marxist-Leninist ideology with its emphasis on party power. Whilst it is conceded that party leadership did have the capacity to de-stabilise imported, private commercial rights, a limited rule of law in the commercial arena was considered to advance party objectives.

Legal transplantation was adopted in Vietnam as an aspect of state law-making. Legislative drafters interpreted and co-opted imported legal ideas to achieve strategic objectives. Gillespie’s case studies are particularly illuminating in this regard. They show that imported commercial rights were negotiated in three-way contests between elite level officials, local level officials and businesses. The discourse was not limited to the drafting process but was also expressed in courtroom disputes between party, state and private interests. Over time, it appears that imported legal ideas, particularly those advocating commercial rights, have provided the frame of reference for implementing the law in Vietnam. Increasingly, legal transplantation now takes place between like-minded groups in Vietnam, and there is an increasing tendency for imported laws to reflect the interests of powerful pressure groups, leaving politically unconnected entrepreneurs to self-regulate. State laws under autocratic legislation assume importance within Vietnam when domestic entrepreneurs seek state privileges, such as access to international markets or tenders.

The great contribution of this book is that it exposes the inadequacy of any deterministic model of legal transplantation. At the same time, the book challenges the conventional understanding about convergence and legal systems. However, it does not seek to answer the question of legal origins as a theory of development. Others have postulated that legal institutions and the rule of law are critical in the transition process of economies. Certainly, law and legal institutions do figure in measuring transitional economies. In this respect, law matters. This book does not seek to answer the question of legal origins as a theory of development. Important questions therefore remain: what is it about law that makes its origin important? Why should law play an important role in economic development, and what differences in legal systems affect, if at all, varying rates of economic development?

In “Race, Racism, and Antiracism: UNESCO and the Politics of Presenting Science to the Postwar Public,” Michelle Brattain examines how the concept of race was reconstructed as a biological category, through a history of an international, post–World War II, antiracist public education project sponsored by the United Nations Educational, Scientific and Cultural Organization (UNESCO). The project, intended to discredit Nazi‐style scientific racism, ultimately produced two collectively authored scientific “statements on race.” The first statement's claim that race was more “social myth” than “biological fact” was rejected by many scientists, who subsequently forced UNESCO to convene a second panel to revise the statement. The ensuing controversy, Brattain argues, should not be seen as merely an academic or disciplinary concern but was rather a historical artifact of race science itself. In spite of the lack of compelling evidence either confirming or denying racial differences, the UNESCO deliberations revealed the extent to which a belief in race and racial differences was a default assumption that fixed the logical structure of the debate. Although ostensibly antiracist, the postwar reconstruction of race as a natural category left science vulnerable to racist manipulation and enabled later demands for “colorblind” policy. While historians have frequently analyzed archaic constructions of races and racial identities, Brattain argues that they must extend historical analysis to the race category more generally and interrogate its use in historical scholarship. The preservation of race as an ahistorical, natural category, she concludes, whether as reformed by antiracist scientists or unintentionally reconstructed in the work of historians, compromises antiracism and facilitates racism.

This article claims that the congressional authority over civil rights is linked to an American rights-based tradition. It traces that tradition from the Revolution, through Reconstruction, and onto today.

Contrary to scholars like Rogers Smithand Larry Yackle, I claim that a fairly stable national ethos, which can be traced to the founding documents, has played an important role in civil rights development. The principle of liberal equality, which is found in the Fourteenth Amendment, is central to a national civil rights policy.

Part II of the article discusses the concepts of liberty and equality during the colonial period. Emphasis is given to the early understanding of the national statements of purpose in the Declaration of Independence and the Preamble to the Constitution. This part also discusses the constitutional compromises that failed to achieve the stated ends of national government. Part III turns to several abolitionist views on the existence of a national obligation to protect rights. Those constitutional theories became influential during debates on the ratification of the Reconstruction Amendments, which granted Congress the power to pass laws securing the privileges and immunities of national citizenship against arbitrary abuses. Debates on the Thirteenth and Fourteenth Amendments, which are the subjects of Part IV, made the principle of equal rights an enforceable part of the Constitution. The article concludes with a criticism of recent Supreme Court decisions, such as United States v. Morrison and Board of Trustees v. Garrett, which have constricted federal prerogatives to protect civil rights.

The Washington Posthas a story on the history of political assassinations, as part of its coverage of the assassination of Benazir Bhutto of Pakistan yesterday. Hat tip to Ralph Luker. Here's a snippet:

The Assassination is almost universally denigrated as a "cowardly act" (as President Bush described Bhutto's killing yesterday). But the historical record shows it to be a dramatic, low-cost, highly symbolic means of communication -- and murder -- that disaffected people use to try to dramatically sway national or even international affairs.

It can work or backfire or just disappear, like a bloody drop in a bucket. Pakistan will be unstable in the coming days, as it has been in the past and will be again. Who can say if Bhutto's slaying is the pinball that leads to destruction, the painful agent of positive change, or just a killing, like most, full of sound and fury and signifying nothing more than murderous nihilism?

The descent into regional conflagration could have been triggered "by 'shock and awe' in Iraq, or the assassination of [prime minister Rafik] Hariri in Lebanon in 2005, or Israel's battles with Hezbollah," says Mustafa Aksakal, assistant professor of history at American University, who is writing a book about the Ottoman Empire's descent into World War I. "But the region has so far been able to absorb these shocks. It's just impossible to say what will be the straw that breaks the camel's back."

"Anyone who thinks they can predict the consequences of a political assassination is a damn fool," says Eric Rauchway, author of "Murdering McKinley: The Making of Teddy Roosevelt's America" and a history professor at the University of California, Davis. "All it provides is an opportunity. However, the opportunity it provides is often not one the assassin intended."

During the nineteenth century, British and American settlers acquired a vast amount of land from indigenous people throughout the Pacific, but in no two places did they acquire it the same way. Stuart Banner tells the story of colonial settlement in Australia, New Zealand, Fiji, Tonga, Hawaii, California, Oregon, Washington, British Columbia, and Alaska. Today, indigenous people own much more land in some of these places than in others. And certain indigenous peoples benefit from treaty rights, while others do not. These variations are traceable to choices made more than a century ago--choices about whether indigenous people were the owners of their land and how that land was to be transferred to whites.

Banner argues that these differences were not due to any deliberate land policy created in London or Washington. Rather, the decisions were made locally by settlers and colonial officials and were based on factors peculiar to each colony, such as whether the local indigenous people were agriculturalists and what level of political organization they had attained. These differences loom very large now, perhaps even larger than they did in the nineteenth century, because they continue to influence the course of litigation and political struggle between indigenous people and whites over claims to land and other resources.Possessing the Pacific is an original and broadly conceived study of how colonial struggles over land still shape the relations between whites and indigenous people throughout much of the world.

Review and blurbs:

Publishers Weekly : [Banner's] overarching argument is an important one: dispelling the myth that colonization patterns were driven by policies set at home. This original and significant study will appeal to readers hoping to understand an issue whose ramifications are still felt today.

Fascinating, convincing, and beautifully written, this is popular legal history that tells an important story about British and American settlers' perception and treatment of native rights to Pacific lands. A major new book in the field.--Bruce Kercher, Macquarie University, Australia

In a style that is lucid and direct, Stuart Banner builds an extensively researched comparative study of settler societies that span the Pacific Ocean. He forces us to rethink the prevailing interpretations of the rise of Anglo-American dominance and the dispossession of indigenous peoples in the nineteenth century. --Michael Adas, author of Dominance by Design: Technological Imperatives and America's Civilizing Mission

Remarkable for its breadth, vision, and mastery of native title and land expropriation issues, Possessing the Pacific is graced by brilliant writing. Stuart Banner's meticulous research, good judgment, and crisp prose combine to make this book a marvelous contribution to comparative history. An all-round triumph!--John Weaver, McMaster University, Canada

This comparative study of the ways that the lands of Australasians, Polynesians, and North American Pacific coast tribes were taken by British and American governments is rich in evidence and wise in analysis. A wonderful addition. --Peter Karsten, University of Pittsburgh

Friedman focuses much of his book on the Victorian era of the nineteenth century. The key phenomenon in his book is what Friedman terms the "Victorian compromise." The Victorian era is famous for its staunch moral code and sense of propriety. Throughout history, Western society has had periods of licentiousness and reticence, and the Victorian era is the symbol for being buttoned-up and prudish. In England and America, this was a period of strong laws against countless forms of disfavored sex, from adultery to sodomy. But Friedman notes that a lot of vice was, in fact, tolerated during this period. According to the Victorian compromise:

Vice at least was tolerable, although only in small amounts and only if discreet and under a good deal of control. Hence a kind of double standard evolved. A prime example was the so-called red-light zone or district. These zones flourished in city after city. Houses of prostitution, gambling dens, and all sorts of vice were rampant in these districts. The law--and the police--winked at them and accepted them as part of urban life. . . . This double standard was the essence of the Victorian compromise. It stands in sharp contrast to the attitude and behavior in (say) Puritan Massachusetts Bay, in the colonial period, with its policy of zero tolerance toward vice and illegal sex. (p. 67)

Friedman further notes that public discussion of sex during Victorian times was strictly taboo, and "[s]ex was meant for the privacy of the home." (p. 72). There was a large double standard when it came to the sexual behavior of men and women. For women, all sex outside of marriage was adultery. "But a married man was criminally liable only if he had sex with a married woman. In other words, for a man sex with a prostitute--or a single woman--was not criminal adultery at all." (p. 73)

In a chapter on blackmail, Friedman observes that the blackmail laws fit with the Victorian compromise -- they were designed to help elites protect their public reputations, to help prevent them from being threatened and extorted by the often poorer individuals who were blackmailing them (their illicit lovers or servants). He notes that "the blackmail statutes began to appear roughly about the same time and with the same underlying ethos as the other laws that made up the Victorian compromise." (p. 99). A similar point is made in Angus McLaren's book-length account of blackmail, Sexual Blackmail: A Modern History (2002). McLaren observes that courts would ignore the truth or falsity of the blackmailer's accusations, which, if true, would often mean that the blackmail victim had engaged in serious criminal conduct (sodomy, for example).

Thus, the Victorian compromise operated to maintain a facade of respectability in public while sin occurred in the dark recesses of the private sphere. It's ok to do it, the ethos of the age said, just be sure to hide it. The Victorian compromise "depended on privacy and secrecy." (p. 215)

The need to protect one's reputation in the Victorian age was heightened by a new danger -- the burgeoning American press, which was highly sensationalistic during the nineteenth century. The lurid nature of newspaper stories was one of the factors that prompted Samuel Warren and Louis Brandeis) to write The Right to Privacy, 4 Harv. L. Rev. 193 (1890), which gave birth to the privacy torts. Friedman observes:

Harriet Martineua thought that the American press was the worst in the world. Charles Dickens, writing in 1842, called the American press a monster of depravity. The press "has its evil eye in every house, and its black hand in every appointment in the state, from a president to a postman"; its "only stock in trade" is "ribald slander," and its "evil" influence spreads throughout the country. Anthony Trollope, writing some twenty years later, was just as critical; the things in the newspapers, he said, were "never true." The forte of the press was "abuse of individuals," abuse "which is as violent as it is perpetual. . . . All ideal of truth has been thrown overboard. . . . The only object is to produce a sensation. . . . Falsehood has become so much a matter of course with American newspapers that it has almost ceased to be a falsehood." (p. 44-45)

Another dimension of protecting reputation involved safeguarding it from false rumors. Friedman's book contains two chapters on defamation, and he marshals interesting facts about defamation cases and gender:

Most defamation cases--at least the reported cases--were brought by men, who were suing other men (or, commonly, newspapers). . . . Typically, women's cases were about chastity (or the lack of chastity); they sued over language that said or implied indecency, whoring, and sexual misconduct in general. Out of 130 reported defamation cases published between 1897 and 1906, only 43 were brought by women. All but one of these cases dealt with "imputations of immorality." (p. 49)

The Victorian compromise came to an end, when, beginning in the late nineteenth century, the anti-vice movement pushed through stronger anti-vice laws. These laws criminalized abortion, closed down red light districts, censored obscenity, and clamped down on prostitution -- things that before had never been viewed as legitimate, but that had been tolerated in the shadows. But this new strictness didn't hold. In the middle of the twentieth century, there was a radical shift in the other direction, liberalizing restrictions on sex, contraception, and obscenity.

Friedman's discussion of the Victorian compromise raises very interesting questions about privacy. Was privacy a way for Victorian society to maintain a monumental hypocrisy? Did privacy help grease a society that was rife with class, race, and gender double standards? The picture Friedman paints of the Victorian era isn't pretty, and the norms and laws protecting privacy and reputation are what helped hold society together during this age. Maybe things would have been better without privacy. Or maybe not. Perhaps privacy was a way to cope with a set of social rules that our society has long since moved away from or repudiated.

Overall, Guarding Life's Dark Secrets is a terrific thought-provoking history, but there are times where Friedman becomes a bit too fast and loose with his own opinions, departing from the more detached tone of the historian and shifting to the more opinionated tone of a social critic. This happens as Friedman delves into a discussion of the present in later chapters in the book.

Friedman could also do more exploring the law of privacy. His chapter on the development of privacy law is far too short, and it does not contain the same level of detail and thoroughness as some of the other chapters. The chapter does, however, contain some interesting background into a few of the more well-known privacy tort cases, and I came away learning a few new things after reading it.

But these are quibbles. For anyone interested in blackmail, defamation, and other laws protecting reputation in America, Friedman's richly-detailed book is a must-read. It contains a fascinating look at the norms relating to privacy, sex, and gender during the nineteenth and twentieth centuries. I highly recommend this book.

For those who are interested in the topics in Friedman's book, Solove recommends:

BBC is carrying the news of the assassination today of Benazir Bhutto, opposition leader and former Prime Minister of Pakistan. Live continuing coverage is here. The New York Times has coverage and biographical information. There is live coverage at CNN.

Yick Wo v. Hopkinsis simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as both the first and last case in which the Supreme Court invalidated a prosecution as racially motivated. This essay explores why Yick Wo proved to be a dead end. It proposes that the traditional view of Yick Wo is mistaken: Yick Wo was about neither race discrimination nor prosecution. Yick Wo turned on the Court's treatment of the conduct at issue, operating a laundry, as a constitutionally protected property right. Therefore, a forgotten but large body of cases from the Jim Crow-era holds Yick Wo categorically inapplicable to prosecutions for conduct the state has the power to criminalize. In addition, because the property interest at stake was constitutionally protected, Yick Wo's race was irrelevant to the decision; a white person or corporation deprived of property would have had precisely the same claim. In fact Yick Wo's race was a barrier to rather than a basis for relief: He could raise a property claim only because he had a treaty right to operate a laundry on the basis of equality with others. When the treaty was inapplicable, the Supreme Court upheld race-based economic discrimination against Chinese and other Asians. Yick Wo is famous because it apparently foreshadows the anti-racist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, it is completely consistent with Plessy v. Ferguson, and stands for only the mundane point that a valid treaty trumps inconsistent state law.

In her insightful and stimulating article, The Mind of a Moral Agent, Professor Susanna Blumenthal traces the influence of Scottish Common Sense philosophy on early American law. Among other things, Blumenthal argues that the basic model of moral agency upon which early American jurists relied, which drew heavily from Scottish Common Sense philosophers like Thomas Reid, generated certain paradoxical conclusions about legal responsibility that later generations were forced to confront. "Having cast their lot with the Common Sense philosophers in the 'formative era' of American law," she explains, "early republican jurists thus bequeathed to future generations of lawyers a problem of responsibility of no small proportions."

In this invited comment for Law and History Review, I first argue that the problems of responsibility on which Blumenthal focuses our attention are not specific to Scottish Common Sense, but rather descend straight from the core of the Western legal and moral tradition. The same problems would arise if Common Sense philosophy had never existed. In addition, even if it is true that Common Sense exerted a powerful influence on American academic life in the antebellum period, it still must be shown that this influence extended to specific features of American law, which remained at the time almost entirely the product of English common law. Blumenthal has not meet this burden, however, because she does not identify any specific doctrines or judicial opinions that might support the conclusion that early American jurists "were steeped in Common Sense philosophy" or sought to construct "an indigenous legal tradition, built on the universalistic premises of Common Sense." Rather, her defense of this interesting claim is highly selective, resting mainly on the writings of Wilson and Hoffman. Third, although Blumenthal claims that there is something puzzling or paradoxical from a Common Sense perspective about moral diversity, the existence of irrational or evil actors, or the fact that individuals often disregard the dictates of their moral sense, she does not adequately explain what exactly that paradox is, nor why Common Sense adherents should be troubled by it. Locke had made objections like these familiar as a result of his attack on innate practical principles in his Essay Concerning Human Understanding. Yet already by the eighteenth century, critics like Shaftesbury, Hutcheson, Reid, and their followers had rejected Locke's arguments as based on mere confusion and fallacy. Finally, a key point that Blumenthal neglects, as does John Witt in his elegant chapter on Wilson, is that Common Sense philosophers also supplied positive scientific arguments for innate moral knowledge, based on observation and induction rather than introspection, whose intellectual worth has proved remarkably durable. We risk misunderstanding Scottish Common Sense and its place in the history of ideas if we overlook contributions like these, or remain content to think of it merely as an unduly optimistic philosophy, which relied mainly on introspection to affirm the innate goodness of humankind, but which gave way to a more accurate theory of human nature as the nineteenth century unfolded. Certainly there is some truth to this description, but it is only part of the story, and a potentially misleading one.

Criticism of substantive due process has had particular resonance since the Reagan administration endorsed originalist theories of constitutional interpretation. The most widely defended version of originalism is so-called public meaning originalism, which holds that the contemporary meaning of a constitutional provision is the public meaning understood by those who lived at the time that the provision was drafted and ratified.

Because substantive due process is a central constitutional rights doctrine, and originalism now defines the terms of most debates about constitutional meaning, it is important to investigate whether substantive due process can be defended on originalist grounds. With particular respect to the Fifth Amendment Due Process Clause, such a defense would solidify substantive individual rights that bind the federal government only through that Clause, create a presumption that substantive due process was also within the original meaning of the Fourteenth Amendment Due Process Clause, and demonstrate that originalism is not inconsistent with the progressive, common law development of individual rights championed by constitutional liberals.

I argue that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed unenumerated substantive rights as a limit on congressional power. The concept of due process as a substantive limitation on government rests on Sir Edward Coke's notion of a higher-law constitutionalism that limited the Stuart kings and, perhaps, even Parliament. Coke's reading of substance into due process was adopted by the American colonies and carried into independence. It is evident from both post-Independence cases and the ratification controversy over the lack of a bill of rights that Americans of the period understood natural and customary rights to be invested with an existence and normative force as higher or constitutional law that did not depend upon their enumeration in a written constitution.

The original meaning of the due process of law in the Fifth Amendment includes a particular understanding of law inherited from the classical natural law tradition, which held that an unjust law was not really a "law." Many late-eighteenth century judges and attorneys believed that legislative acts that violated natural or customary rights were not truly laws, irrespective of their compliance with written constitutional prescriptions for the creation of positive law. Accordingly, deprivations of life, liberty, or property under the authority of such acts were not understood to comply with the law of the land or the due process of law, because the deprivations were not accomplished in accordance with "law."

The classical understanding of law in the Fifth Amendment Due Process Clause is evident in legal dictionaries and in judicial decisions and arguments of counsel during the years before and immediately after ratification of the Bill of Rights in 1791. On balance, there is sufficient historical evidence to support the conclusion that at least one common public understanding of the Due Process Clause of the Fifth Amendment in 1791 was that it protected unenumerated natural and customary rights against encroachment by Congress.

There is much more to Dodge v. Ford Motor Company than meets the eye. Dodge is often misread or mistaught as setting a legal rule of shareholder wealth maximization. This was not and is not the law. Shareholder wealth maximization is a standard of conduct for officers and directors, not a legal mandate. The business judgment rule protects many decisions that deviate from this standard. This is one reading of Dodge. If this is all the case is about, however, it isn't that interesting.

But Dodge is a part of the corporate law canon because it is about much more than this. This essays shows that what the Michigan Supreme Court did was actually an elegant solution to a complex legal and policy issue. The history of case and the parties also shows how many prominent aspects of corporate law and practice have long and under-appreciated histories.

Henry Ford failed twice as an entrepreneur before finding success with the Ford Motor Company. His failures, which he blamed on meddling investors, presaged not only his conflict with the Dodges, but also show the importance of allocating and exercising control rights deftly. The history demonstrates how modern techniques for allocating control rights separately from economic rights would have helped the parties avoid costly and acrimonious litigation. Perhaps most interestingly, however, the back-story of the case shows that it is not clear at all that the parties wanted to avoid litigation. Both the Dodges and Henry Ford used the legal process as a tool in what was at base a business dispute. To paraphrase von Clauswitz, litigation is business by other means. The history of this case provides a prototypical example and also shows an example of how courts can resolve disputes well in these cases.

This essay also shows how practices common today in venture capital transactions, corporate reorganizations, and other areas of corporate law and practice appear vividly in the back-story of this case. Many seemingly new ideas are not, and examining their historical roots can help us better understand them and their place in our modern understanding of corporate law.

Tuesday, December 18, 2007

William Baude has posted a new article, The Judgment Power. Baude is a law clerk to Judge Michael McConnell, Tenth Circuit Court of Appeals. The article is forthcoming in the Georgetown Law Journal. Here's the abstract:

When an Article III court decides a case, and the President disagrees with the outcome, what can he do about it? Existing scholarship generally takes two views. Some scholars argue that the President has general authority to review these judgments on their merits and decide whether to enforce them. Others believe that the President has an unqualified duty to obey court judgments no matter what. This paper challenges both of those views. Drawing on conventional constitutional history as well as the private law of judgments, this paper defends a new view of the judiciary's Judgment Power. Judgments are binding on the President, who must enforce them even if he disagrees with them. However, the President is entitled to ignore a judgment if the issuing court lacked jurisdiction over the case in question. This thesis also has implications for the role of the judiciary in the constitutional structure, and for evaluating President Lincoln's conduct in Ex parte Merryman.

This past August, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law," and if not, that the American public would take to the streets to resolve their disputes. However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed? The result of this obfuscation, I show, is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.

Some things do not seem to change or, in Barbara Perry’s felicitous phrase, we may be “Bakke to the Future.” Her account of GRATZ v. BOLLINGER (the University of Michigan undergraduate admissions case) and GRUTTER v. BOLLINGER (the Michigan law school admissions case) is more than the tale of the journey of two Supreme Court cases and their aftermath. It is also the story of the profound shift in the justifications for affirmative action in college and university admissions.

Perry, the Carter Glass Professor of Government at Sweet Briar College and Senior Fellow at Louisville’s McConnell Center, has written a superb addition to the University of Kansas Press’s Landmark Law Cases and American Society series. Few books so successfully limn the background, cast and characters, issues, decisions and significance of a leading Supreme Court case as does THE MICHIGAN AFFIRMATIVE ACTION CASES....

Two important lessons about judicial politics are affirmed in these pages. The first is that individuals do matter. Powell and O’Connor demonstrate the power of the centrist justice in a deeply divided court. In many ways O’Connor was Powell’s doppelganger. Their shared temperament and professional values blossomed into a close and warm friendship. Both justices were the only ones on their respective courts to have held a legislative office. Both were “judicial diplomats” (p.96), displaying an uncanny ability to detect the sweet middle of a divided court and to build and hold a cohesive majority among a set of high-strung individualists. Both embraced a new understanding of diversity as the principal justification for racial preferences when societal rather than individual discrimination was at fault.

The second lesson is that the legal process may have more in common with legislative politics than popular or elite opinion will admit. Perry lays out a fascinating sidebar discussion about the alleged manipulation of the court docket by the chief judge of the 6th Circuit (pp.77-84, 138-140, 170-171). Dissenting judges charged him with intentional manipulation so as to exclude retiring Republican judges from participating in the case. Apparently, the 6th Circuit is as polarized and as susceptible to procedural and docket timing tricks as is the US House of Representatives. No one will walk away from this discussion still entertaining the idea that federal court judges are Platonic guardians, dispassionately deducing principles of constitutional doctrine from perfect ideals embodied in the constitutional firmament.

Perry’s story also demonstrates the profound shift in the rhetoric justifying affirmative action in the near thirty years since BAKKE. Over the years, justifications for racial and ethnic preferences in higher education have narrowed from broad claims, such as group compensation for societal discrimination and the need for role models, to the simpler one stated explicitly by Justice Powell in BAKKE: diversity. O’Connor confirmed this shift by relying on Powell’s curious, perhaps contradictory, assertion of academic freedom as a basis for protecting diversity in academia, a negative liberty claim deployed in defense of an egalitarian outcome. Whether the diversity value can carry this weight is open to debate, especially given recent Supreme Court decisions....

I've had to take my paper The Case of 'Death for a Dollar Ninety-Five': Finding America in American Injustice off of SSRN's publicly available sitefor copyright reasons. It can go back up a year after it appears in a collection from a university press.

For those interested in the paper, I've converted it to a "private" SSRN paper. If you would like a copy, please e-mail my USC assistant Susan Davis at: sdavis "at" law.usc.edu.

For others in a similar position: in the past when I've had to take a paper off of SSRN, I've lost my accumulated downloads. By making a paper "private," and re-posting later, the downloads are subtracted from your overall download count while the paper is not on the public site, but they are preserved and should be added back in once the paper is public again. With a renewed focus on SSRN downloads for ranking faculty, it's unfortunate to temporarily lose credit for past downloads, but at least this way they're preserved until the time your paper can be re-posted.

Here's the paper abstract:

The Case of 'Death for a Dollar Ninety-Five': Finding America in American Injustice

This is a story about a case long forgotten. It was a case that needed to be forgotten, to safeguard the meaning of American justice. The case of Death for a Dollar Ninety-Five began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening. The conviction was swift and the penalty was death. International criticism soon rained down on the Alabama Governor and the American Secretary of State, leading to clemency and a life sentence. For $1.95. And the case was forgotten. This story helps us to see the way narratives of American justice and injustice are managed. The United States identifies itself with the rule of law, and so miscarriages of justice are often perceived as breaches in that identity, violations of the nation's own core principles. Resolutions of miscarriages of injustice, this paper will argue, are often about repairing a breach in American identity, making America whole again. What happens to the person at the center of the story is, at best, secondary. For the story to turn out right, the nation is restored, and the person is forgotten.

This paper is a short history of slavery and race relations at the College of William and Mary from its founding in 1693 to the current day. It synthesizes information both new and known from a variety of sources; it was drafted as a background paper for a resolution yet to be considered by the Faculty Assembly at William and Mary calling on the Provost to commission a full history of the subject

Copyright scholars are almost universally unaware of Jewish copyright law, a rich body of copyright doctrine and jurisprudence that developed in parallel with Anglo-American and Continental European copyright laws and printers' privileges. Jewish copyright law traces its origins to a dispute adjudicated some 150 years before modern copyright law is typically said to have emerged with the Statute of Anne of 1709. This Article examines that dispute, the case of Maharam of Padua v. Giustiniani. Remarkably, the ruling in that dispute reaches some of the same fundamental issues that animate copyright jurisprudence today: Is copyright a property right or a limited regulatory prerogative? What is copyright's rationale? What is its scope? Which law should be applied to a copyright dispute in which the litigants reside under different legal regimes? How can copyright be enforced against an infringer who is beyond the applicable legal authority's reach?

I begin with the factual and historical background to the dispute. I then analyze the rabbinic judge's reasoning and decision. I close with a brief description of the dispute's tragic postscript.

Adriaan Lanni, Harvard Law School, has posted a new article, The Laws of War in Ancient Greece. It is forthcoming in the Law and History Review. Here's the abstract:

Lanni surveys what is known about the law of war in ancient Greece, addressing the law's sources, content, and enforcement mechanisms. She argues that although there was a relatively effective law of war in ancient Greece, it did not encompass humanitarian ideals. Instead, the laws of war focused on protecting sacred objects and observances. Despite the central role played by religion and honor in the Greek laws of war, these laws were indifferent to considerations of mercy and the protection of noncombatants. Lanni next asks what insight the evidence from ancient Greece might give us in the ongoing debate over whether international law can ever truly restrain states. The traditional scholarly account of the Greek law of war would support the realist position. But Lanni argues that the Greek example, which includes instances where Greek states observed international norms that were clearly contrary to their interests, suggests one time and place where international law served as a meaningful check on state behavior.

As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government - this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.

About the ProgramEric Muller examines the U.S. government's decision to force 70,000 American citizens of Japanese ancestry into internment camps during World War II. Mr. Muller chronicles the government's process of determining the loyalty of these citizens and the legal challenge it faced at the end of the war. Mr. Muller presents his book at the Japanese American National Museum in Los Angeles.

About the AuthorEric Muller is a law professor at the University of North Carolina at Chapel Hill. He is the author of "Free to Die for Their Country: The Story of Japanese American Draft Resisters in World War II."

After an introduction into the paradoxes of the coexistence of a traditional legal order, oppression, and persecution of opponents and minorities under the National Socialist government in Germany (1933-1945), the article explains how deep the National Socialist ideology penetrated several fields (constitutional and administrative law, penal law, tax law, etc.). I conclude with a short reflection concerning the problem of historicizing Nazi law.

This essay compares the democratic quality of two constitutional moments that were central turning points in two of the most influential democracies in recorded history - the re-codification of Athenian law in 403-399 BCE and the drafting and ratification of the United States Constitution in 1787-1788. Judged in the context of their time and place, the processes of constitution making in both polities were impressively democratic. They were strikingly similar as well. This essay highlights those similarities, as well as an irony: Athens and America may have perfected a democratic process of constitution making in the service of a shared commitment to moderate their democracies.

Saks was valedictorian at Vanderbilt and a Marshall scholar at Oxford before she got her law degree from Yale. She also suffers from schizophrenia that has caused her to experience wild hallucinations, debilitating paranoia and violent psychotic breaks. As a clear-eyed portrait of a brilliant mind run off the rails, Saks's memoir recalls novels like The Bell Jar and I Never Promised You a Rose Garden. (Another great memoir of mental illness from 2007 that deserves a mention is Look Me in the Eye: My Life with Asperger's, by John Elder Robison, brother of the bestselling writer Augusten Burroughs.)

When I was completing my first book, Cold War Civil Rights, I did my photo research the old fashioned way. I went to the offices of Corbis-Bettmann in New York City, since they had rights to pictures taken by United Press International photographers. It was a goldmine, if a somewhat chaotic one. Jammed in rows of file cabinets were aging 8x10 glossy images and contact sheets. Once I located the right file, I could simply pull it out, take it to a table, and pour through all the images they had related to my topic. The contact sheets would have the photo frames before and after an iconic image, published in newspapers, was taken.

There are still places where this sort of photo research can be done. But not at Corbis, a Bill Gates company, which acquired the UPI archives. Not long after I completed my research, all those old images and the original film were moved for safe storage to a vault deep in a refrigerated mine shaft outside of Butler, Pennsylvania, the Iron Mountain Storage Facility. The film will certainly be better preserved there. But gone are the days when you could pour over the contact sheets and find images that were never published – images that might unlock secrets in the history you are writing, even if they would never had made it into a magazine.

The good news, of course, is that Corbis digitized millions of the images in its holdings, and the digitized images can be found on-line. There is no longer a need to trek to New York. You can even do your research in the middle of the night, using Corbis’s useful search function. Corbis is the most well-know of the on-line commercial photo archives, and it is also the most expensive of any I have used. Since authors often bear the cost of rights for their photos, you may find it beneficial to shop around.

Other commercial photo archives also have excellent collections, and you may find a better image of an event by searching for photos held by different vendors. Events in my new book take place in the U.S., Kenya and England, so I tried British photo archives. To my surprise, sometimes a British archive had images of events in the U.S. that were better for my book than those I found in U.S. sources.

While commercial archives can be essential for some purposes, they will often be the back-up to other places you rely on for images during the course of your research, such as the Library of Congress, which has digitized some of its extensive holdings. Some Library of Congress images are in the public domain, which means they can be used without restrictions. Some of these images are outstanding, such as a striking Carl Van Vechten photo of Josephine Baker that I found for the cover of the Journal of American History, accompanying my article on Baker. Be aware, though, that obtaining rights for some images can be time-consuming and uncertain. You seek rights from the copyright holder, but a copy of the photofrom the Library of Congress, so there is a two-step process. The Library has an expensive option for expedited photo orders, but it is not available for all images. Although I phoned ahead to go through the ordering process with a staff member, I did not learn that a couple of images I was interested in could not be expedited until after I placed an order. The lesson here is to order LOC prints well in advance, even if you don't yet know whether you'll be using them in your book.

Presidential libraries also can be an excellent source. I was able to look through well-organized file drawers full of images at the LBJ Libraryin Austin, which has some if its images on-line. The photos I needed were in the public domain, so there are no copyright costs. Copies of high resolution images were only $10 a piece, and I received them much more quickly than the timeframe listed on the website.

For research in commercial photo archives, here are places to get started:

AP Photo ArchiveThis is the place to go for Associated Press photographs. Access is not always easy. You need to log in from a participating university or library. You may find that you can access it on campus, but not from home unless you have a VPN hook-up. (I tried the registration process to get off-campus access, but that didn’t work for me. The email I was supposed to receive with information enabling me to log in never arrived.) Once you get past this hurdle, however, you get to a site with an effective search function, making images easy to find, but that is not quite as user-friendly as the bigger commercial sites. Once you find what you need, contact information for ordering images is here. Just one phone call got me to a very helpful, knowledgeable and pleasant staff member. From that point, photos were easy to order, and the cost was comparatively low.

Getty ImagesGetty’s collection includes many images of events in American history, such as the civil rights movement. At the Getty site, you can save images in a "lightbox," enabling you to keep track of your research. You can then copy them into your shopping cart when you’ve made final selections. Lightboxes are very helpful not only for organizing your research, but also for collaborating with colleagues or with your editor, since you can e-mail your lightbox to others. When I called about ordering photos, the staff was professional, helpful, and just as nice as the AP staff.

CorbisCorbis is the big kid on the block, with 100 million images in its collection. The set-up is very similar to Getty, making it easy to navigate, save and share images. Be sure to try to contact Corbis well in advance of your deadline. They have the capacity to act quickly, and the staff this time handled my queries and my order in a timely way. But with a past project, I sometimes had trouble getting a return e-mail from my Corbis contact, leading to an unnecessary time crunch at deadline time. This is a for-profit operation, and academics are probably not high rollers, and so not high on their priority list. You can find excellent images, but give yourself enough time for the occasional snafu.

AlamyAlamy is a British photo archive, with 10.58 million images in its collection. This site also uses lightboxes and is easy to navigate. I found two exceptional photographs for my book, including a photograph of a police officer pursuing a demonstrator, as firefighters doused others with a high-powered hose, during the famous civil rights demonstrations in Birmingham, Alabama, in May 1963. It was taken by legendary civil rights photographer Charles Moore. There are more high quality images of events in Birmingham on this site than I was able to find at either Corbis or Getty. I reached a helpful staff member with one easy phone call, and the ordering process was easy and efficient.

These are just the sites I’ve used recently. There are others, and suggestions of alternatives would be most welcome, either in the comments or by emailing me.

How do you order photographs? For all but AP, you’ll see a shopping cart option where you can order photos. But you should contact a representative by phone to discuss the sort of rights you need and the pricing.

How much do rights cost? It depends on the kind of book (academic or trade), the size of the image, the print run, and the kind of rights you need (U.S. or world, print and/or electronic, etc.). It’s not a good idea to underestimate print run to get a lower rate, since if your print run turns out to be higher, you’ll have to pay again (this happened to me with Cold War Civil Rights). Costs vary, but it’s important to know that most vendors will cut their initial price. If you’re publishing with an academic press, and your book is headed for principally an academic market (in spite of your broader ambitions), stress this point and see if it brings the cost down. A little good natured begging aimed at a congenial vendor just might help you stay in your budget.

How do you receive your images? For Corbis, Getty and Alamy, photographs are downloaded from their websites or a link they email you. AP images are provided by e-mail. This led to a problem when one of my images got blocked, apparently by my email program. AP was able to work around this by making the file smaller by reducing the photo’s resolution (from 400 dpi to 300 dpi). Higher resolution will result in a crisper image, so I asked them to follow up by sending me the higher resolution photo on a CD.

If you can’t find the right image anywhere, you can ask them to do research. Corbis, Getty, Alamy and the AP archive did searches for me. All were fairly quick – AP’s turn-around is 24 hours and Corbis takes a few days. AP found an image of Thurgood Marshall in Nairobi that I had seen in anther book and knew was an AP image, but that was not in their digitized holdings. Corbis located several images of Tom Mboya in Kenya, though none were what I needed for the book. However when I asked Corbis to look for more images of the 1963 civil rights demonstrations in Birmingham, Alabama in May 1963, they replied that the digitized images on their website were all they had. For such a widely covered event in civil rights history, UPI photographers certainly would have snapped more photos. I found what I was looking for at Alamy.

And so, while I miss the old days in the cluttered office of the old Corbis-Bettmann, there is something to be said for doing this research at any hour of the day or night, and without leaving your family. And there are many images to be found through on-line archives, especially if you try more than one.